Vander Houwen v. Dep’t of Ecology

Vander Houwen v. Dep’t of Ecology, WL 3306608 (Wash. Ct. App. 2012) (holding that the Department of Ecology may deny an application for a groundwater appropriation permit where it can be shown that withdrawal of groundwater would impair existing surface water rights or detrimentally affect the public welfare).

Mr. Vander Houwen (“Vander Houwen”) purchased two parcels of land near Naches, Washington, one parcel with an existing groundwater well, and one parcel without. In 1992, Vander Houwen contacted the Department of Ecology (“Ecology”) to inquire about increasing his water right in order to support an expansion of his orchard. Ecology found no record of a water right for the existing well, and advised Mr. Vander Houwen to apply for a groundwater permit. To acquire a water appropriation permit, an individual or entity must submit an application to Ecology, in accordance with Wash. Rev. Code §§ 90.03.250, .260, and §90.44.060.

Vander Houwen did not apply for a permit at that time, but hired a well driller to deepen the existing well and to drill a new well on the other parcel of land. Vander Houwen then applied for two water right permits to appropriate groundwater through each well. Ecology reviewed the applications in accordance with Wash. Rev. Code § 90.03.290(3), which requires that Ecology determine (1) whether any water was available to be appropriated; (2) whether the proposed use would be beneficial; (3) whether the appropriation would impair existing water rights; and (4) whether the appropriation would detrimentally affect the public welfare. Wash. Rev. Code § 90.44.060 specifies that these requirements are applicable to groundwater.

Due to hydraulic continuity, pumping of the Mr. Vander Houwen’s wells diminished surface water supplies for both the Naches River and the Yakima River. The Naches River, a tributary of the Yakima River, is highly appropriated, and during dry years, the river cannot satisfy all water rights. The water shortage of the Yakima River has been a significant point of public interest. Therefore, the Bureau of Reclamation designed the Yakima River Basin Water Enhancement Program to improve river flow, fish passage conditions, and fisheries in the Yakima River Basin. In support of that project, the legislature enacted Wash. Rev. Code § 90.40, removing all unappropriated surface water in the Yakima River Basin.

Vander Houwen’s original well removed water from the Ellensburg Formation aquifer, creating a void that drew from, and results in, water loss from the Naches River. The newly drilled well also drew water from the river by creating voids, or intercepted water before it reached the Naches River. Ecology concluded, that due to hydraulic continuity, groundwater appropriation would impair existing water rights and negatively affect the public interest, and, thus, denied Vander Houwen’s request for permits.

Vander Houwen filed an appeal with the Pollution Control Hearings Board (“Board”). The Board affirmed Ecology’s decision and Vander Houwen petitioned the Yakima County Superior Court (“superior court”) for review. The superior court found the evidence insufficient to show that the requested appropriation impaired existing water rights or detrimentally affected the public welfare. It remanded the issue back to the Board. The Board reaffirmed Ecology’s decision to deny the applications based on evidence presented by Ecology, showing hydraulic continuity between the wells and the Naches River. Vander Houwen then appealed to the Court of Appeals of Washington (“court”).

The court reviews administrative decisions in accordance with the Administrative Procedure Act, Wash. Rev. Code § 34.05, and bases its review on the record. The court reviewed the record and addressed two issues: 1) whether the appropriation would impair existing water rights; and 2) whether the appropriation would detrimentally affect the public welfare.

The court examined the evidence presented by ecology, the high appropriation of the river, the removal of unappropriated water, and the amount of water Vander Houwen requested. The court held, because of the hydraulic continuity between the wells and the Naches River, Vander Houwen’s use of his wells would diminish surface water during dry years and likely impair existing water rights.

The court also considered the public’s interest in the Yakima River and its investment in the Yakima River Basin Water Enhancement Program. The court determined the reduction of surface water in the Naches River would detrimentally affect the Yakima River Basin and undermine the Yakima River Basin Water Enhancement Program. Thus, the court held that approval of the applications would be detrimental to the public welfare.

The court concluded that the evidence, presented by Ecology, supported the Board’s determination and affirmed the Board’s decision to deny Mr. Vander Houwen’s applications for groundwater rights.